Mental health claim denied via raters opinion. AMA attached

[FlyboyLeRoy]

Mental health claim denied even with a private dbq/nexus & c&p exam nexus/dbq that are both favorable and agreed upon diagnoses. Attached is my appeal for higher level review. How does it look to you?

[FlyboyLeRoy]

2 hours ago, broncovet said:

Ok, I read as much of this as I could see.  My advice:

     1.  Appeal this denial to the BVA, (file a nod).  Yes, you have to have a diagnosis of PTSD BY A VA DOC, not a private physician, altho, that policy could be challenged in court if this gets to the CAVC.  Its my opinion that the requirement (which isnt in the regulations IM aware of) of a diagnosis "by a VA doc", is arbritrary and capricious.  VA docs are often trained in private practice, and private practice docs are often trained at VA.  So, it makes no sense at all, that they require a PTSD diagnosis be done BY A VA doc.  

     2.  You said something about buddy letters to veryify stressor.  Now that is a big deal.  Were those buddy letters "in evidence section" of the decision?  VA LOOOOVES to lose key critical evidence at every opportunity.  If they are not in the evidence section, then, your appeal should to the board should be "with new evidence" and submit those buddy letters confirming the stressor to the Board, with your appeal.  Dont count on the VA to forward those buddy letters.  That is the key for them to deny you.  

     3.  Combat.  If you were in a combat zone, then PTSD is pretty much presumed for combat Vets.  You almost had to be either a witness to horrific war events, or maybe lost a buddy.  You dont have to be with that buddy when he died for it to cause PTSD.  Its sort of like when if your parents or your spouse died, you would have to be WITH THEM when they died to grieve.   This isnt true.  Your grief may be worse if you werent with them when they died, becaue you feel guilty you were not there.    Since combat is often chaos, the standards for docuemtation of a stressor in combat are reduced.  Read this about VA's duties for combat vets and stressors:  https://www.bva.va.gov/docs/VLR_VOL1/vlr1finn.pdf

    

 

My buddy letter was attached and has all of his contact info and shows as being submitted on Ebenefits.  It clearly must have been ignored Or never read. Since this claim I saw a va doctor who has diagnosed me with the same. I’m interested to see the outcome now. 

[broncovet]

Ok.  

1.  HLR pretty much "rubber stamps" the denials from VARO, to get them to read it you need to go to the BVA.  

2.  You need to check your VBMS to SEE if the buddy letters "actually were" included.  Now, if you tried to submit "new evidence" such as buddy letters with a HLR, that is an automatic denial.  HLR specifically excludes new evidence.  THose must be done through SCL, which does allow new evidence.  HLR wont consider new evidence.  Perhaps even more important, were those buddy letters listed in the evidence section of the decision?  If VA did not have those letters that you submitted via ebenefits, it wont be the first time evidence got lost electronically.  The VA admitted they had a problem with that..ebenfits said it was uploaded, when it was not.  

3.  Were you in combat?  ITS okay if you were not, Im not trying to insult you..neither was I in combat.  But its easier to verify a stressor in combat, as va has special rules for combat vets in regard to the stressor.  

[Berta]

 I suggest, since the VA says they did not even to attempt to confirm the stressor- that you contact JSRRC yourself.Their contact info is here under a search.

I am thinking as well- that you did ask for a HLR but maybe CUE is now in order this way-

Send the CUE to your VARO as "Attention to " and then put the alphanumeric code there which should be  the top right of the first page on the decision, (unless VA got wise to my advice on that here many times and does not put the alphanumeric anymore ???? It sure worked for me.)

Also send it separately to support the HLR request.

We have templates for  CUE within the appeal period- this will work:  as I understand what you posted:

To whom it may concern:                        date

This is a request for revision of your recent decision ,under auspices of 38 USC 5107.

https://www.law.cornell.edu/uscode/text/38/5109A

In your recent decision of ( date) you made no attempt to verify my stressor via Joint Services Records Research Center and completely ignored the  ( date) Buddy Statement, I had from ( name) which I have again enclosed.

Your clear and unmistakable error was a violation of 38 CFR 4.6 .

§ 4.6 Evaluation of evidence.

"The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

Due to this legal error  - an "element" of probative value never received the proper consideration and  the decision held a manifested altered outcome for me , that was to my detriment.

I request a decision that is based on evaluation of  the enclosed buddy statement that you received ( date - if you know the date of USPS tracking slip or ebenefits entry.)

Enclosed:

Decision of ( date)   (-pages) ( they just need   the decision cover letter ,Evidence list and denial rationale) 

Buddy Statement    (date) --Pages

  Total enclosures     _____                                                                                       Respectfully,

-------------------------------------------------------------------------------------

(Short and sweet)

CUEs like this should never be too long. 

The fairly new HLR guidelines are here in M21-1MR under a search.

I wrote to former Secretary Shulkin to change them and have the HLRs seek CUE themselves, as too many vets have had to prepare CUE claims, as I have seen over the years as a veterans advocate, and I myself had to file numerous CUEs on VA decisions that were erroneous to my detriment, but then awarded.

I got a nice phone call from his pffice ad a nice card from President Trump. He also used another suggestion I made too. 

 

I have not heard from Sec Wilkie yet on my letter to him regarding AO and some potential new presumptives.

If the enemy drops their weapon and runs away, you can use their weapon against them.

Sort of my philosophy on CUE. Use their regulations against them. They sure try to use them against us.

 

 

 

Edited March 16, 2020 by Berta
spelling

[FlyboyLeRoy]

6 hours ago, broncovet said:

Ok.  

1.  HLR pretty much "rubber stamps" the denials from VARO, to get them to read it you need to go to the BVA.  

2.  You need to check your VBMS to SEE if the buddy letters "actually were" included.  Now, if you tried to submit "new evidence" such as buddy letters with a HLR, that is an automatic denial.  HLR specifically excludes new evidence.  THose must be done through SCL, which does allow new evidence.  HLR wont consider new evidence.  Perhaps even more important, were those buddy letters listed in the evidence section of the decision?  If VA did not have those letters that you submitted via ebenefits, it wont be the first time evidence got lost electronically.  The VA admitted they had a problem with that..ebenfits said it was uploaded, when it was not.  

3.  Were you in combat?  ITS okay if you were not, Im not trying to insult you..neither was I in combat.  But its easier to verify a stressor in combat, as va has special rules for combat vets in regard to the stressor.  

The buddy letter reads on ebenefits as being part of the viewed evidence, so i'd assume that means it was read, but we know how that works too. I was not in combat. I'm going to look into filing a CUE since there does appear to be a clear mistake on this situation. 

[FlyboyLeRoy]

1 hour ago, Berta said:

 I suggest, since the VA says they did not even to attempt to confirm the stressor- that you contact JSRRC yourself.Their contact info is here under a search.

I am thinking as well- that you did ask for a HLR but maybe CUE is now in order this way-

Send the CUE to your VARO as "Attention to " and then put the alphanumeric code there which should be  the top right of the first page on the decision, (unless VA got wise to my advice on that here many times and does not put the alphanumeric anymore ???? It sure worked for me.)

Also send it separately to support the HLR request.

We have templates for  CUE within the appeal period- this will work:  as I understand what you posted:

To whom it may concern:                        date

This is a request for revision of your recent decision ,under auspices of 38 USC 5107.

https://www.law.cornell.edu/uscode/text/38/5109A

In your recent decision of ( date) you made no attempt to verify my stressor via Joint Services Records Research Center and completely ignored the  ( date) Buddy Statement, I had from ( name) which I have again enclosed.

Your clear and unmistakable error was a violation of 38 CFR 4.6 .

§ 4.6 Evaluation of evidence.

"The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

Due to this legal error  - an "element" of probative value never received the proper consideration and  the decision held a manifested altered outcome for me , that was to my detriment.

I request a decision that is based on evaluation of  the enclosed buddy statement that you received ( date - if you know the date of USPS tracking slip or ebenefits entry.)

Enclosed:

Decision of ( date)   (-pages) ( they just need   the decision cover letter ,Evidence list and denial rationale) 

Buddy Statement    (date) --Pages

  Total enclosures     _____                                                                                       Respectfully,

-------------------------------------------------------------------------------------

(Short and sweet)

CUEs like this should never be too long. 

The fairly new HLR guidelines are here in M21-1MR under a search.

I wrote to former Secretary Shulkin to change them and have the HLRs seek CUE themselves, as too many vets have had to prepare CUE claims, as I have seen over the years as a veterans advocate, and I myself had to file numerous CUEs on VA decisions that were erroneous to my detriment, but then awarded.

I got a nice phone call from his pffice ad a nice card from President Trump. He also used another suggestion I made too. 

 

I have not heard from Sec Wilkie yet on my letter to him regarding AO and some potential new presumptives.

If the enemy drops their weapon and runs away, you can use their weapon against them.

Sort of my philosophy on CUE. Use their regulations against them. They sure try to use them against us.

 

 

 

They did state that they could not confirm the events through the JSSR, but its still irrelevant since i have a buddy letter and a diagnoses from c&p exam, va doc, and private doc. There's articles on the situation that can be found and my orders show that i was there during these incidents, so i dont understand where their heads is. I like the idea of a CUE, ill reach out to my VSO and see what he thinks and or if it would affect my current HLR also. Thank you. 

[Berta]

Geez I made a typo-

"This is a request for revision of your recent decision ,under auspices of 38 USC 5107"

I meant 38 USC 5109A!!!!     ......auspices of 38 USC 5109A !!!!! SORRY!!!!!!

Feel free to share this with your  VSO- and the correction I just made....